Vicarious liability and violence at work
Vicarious liability is an ancient concept of English law whereby, in the employment context, legal responsibility is imposed on an employer, although the employer is free from blame, for a tort (a civil wrong) committed by an employee in the course of his employment. For such liability to apply, the act of the employee must be so closely connected with what the employee was authorised to do that it would be fair and just to regard it as a mode, even if an improper one, of doing it.
In deciding whether the connection is sufficiently close, the court has to balance the social interest in furnishing an innocent tort victim with a recourse against a financially responsible defendant, with the need to avoid foisting an undue burden on a business enterprise. Vicarious liability is a loss distribution device used on grounds of social and economic policy.
The facts of the Mohamud v Morrison’s case were that on 15 March 2008, M entered MS plc’s premises in Small Heath, Birmingham. The premises include a petrol station and a kiosk where customers pay for their purchases. Having parked his car, M entered the kiosk to ask whether he could print some documents from a USB stick.
Mr Amjid Khan was behind the kiosk desk, employed by MS plc to see that petrol pumps and the kiosk were kept in good order and to serve customers. Mr Khan refused M’s request in a rude manner, at which M protested. Mr Khan responded in foul, racist and threatening language and ordered M to leave. M returned to his car followed by Mr Khan.
Before M could drive off, Mr Khan opened the passenger door, told M in threatening words never to return and punched him on the left temple. M got out and walked round to close the passenger door, at which point Mr Khan subjected him to a serious attack. M had not done anything which could be considered aggressive or abusive. He alleged that as a result of the attack, he suffered psychological injuries and a head injury that resulted in epilepsy.
M brought proceedings against MS plc on the basis that it was vicariously liable for the actions of its employee Mr Khan. The trial judge dismissed the claim because he considered that there was an insufficiently close connection between what Mr Khan was employed to do and his tortious conduct in attacking M for MS plc to be liable. The Court of Appeal upheld the judge’s decision.
M appealed to the Supreme Court, challenging whether the “close connection” test was the appropriate standard to apply and also arguing that his claim should have succeeded in any event.
The Supreme Court unanimously allowed the appeal. It made the following points.
- The court has to consider two matters. First, the court must ask what function or field of activities has been entrusted by the employer to the employee (i.e. the nature of his job). This is to be viewed broadly.
- Second, the court must decide whether there was a sufficient connection between the position in which he was employed and his wrongful conduct to make it right for the employer to be held liable. Applying that test here, it was Mr Khan’s job to attend to customers and respond to their inquiries. His conduct in responding to M’s request with abuse was inexcusable, but interacting with customers was within the field of activities assigned to him by his employer. What happened thereafter was an unbroken sequence of events.
- The connection between the field of activities assigned to Mr Khan and his employment did not cease at the moment when he came out from behind the counter and followed M onto the forecourt. There are two reasons to draw this conclusion. First, it is not correct to regard Mr Khan as having metaphorically taken off his uniform the moment he stepped out from behind the counter ― he was following up on what he said to M. Second, when Mr Khan followed M to his car and told him not to come back to the petrol station, it was not something personal between them but an order to keep away from his employer’s premises. In giving the order he was purporting to act about his employer’s business.
- Mr Khan’s motive in the attack was irrelevant. It did not matter whether he was motivated by personal racism rather than a desire to benefit his employer’s business.
While the Supreme Court took care to state that it had not changed the law on vicarious liability, it seems clear that it has significantly extended its scope. It is arguable that employers can now be found liable for criminal acts committed by employees at work even when those acts were personal acts not directly connected to their employment. The Court’s decision may result, for example, in cases such as ST v North Yorkshire County Council (1999), where ST, a mentally handicapped school pupil who suffered from epilepsy, alleged that he had been sexually assaulted by his deputy headmaster during a school trip to Spain. He claimed compensation from NY on the basis that it was vicariously liable for the assaults.
At first instance, his claim succeeded. NY appealed to the Court of Appeal. That Court reversed the decision. It stated that an assault on a school pupil was an independent act outside the course of employment. It could not be regarded as a mode of doing what the deputy headmaster was employed to do. It was not sufficient for vicarious liability that the employment provided the opportunity for the employee to commit the act.
Another example of the application of the concept before the Morrisons case is Duffy v Thanet District Council (1984). Three apprentices were sent by their employers on a course at a technical school. During the course of making a wooden arch, a struggle ensued over a chisel and the eye of one of the apprentices was injured. The injured person claimed compensation from his employer. The claim failed. The High Court ruled that the injury had been suffered during the course of an unauthorised act and the employers were not liable.